Hey, what about Obama's threat to veto the NDAA if it maintains restrictions on prisoner transfer?

Remember Obama's May 21 threat to veto the National Defense Authorization Act if restrictions on his authority to transfer Guantanamo prisoners are not removed?

The President applauds Ranking Member Adam Smith for his continued stalwart leadership in standing up for our values and national security by advancing the cause of closing the detention facility at Guantanamo Bay. By eliminating unwarranted and burdensome restrictions relating to the transfer of Guantanamo detainees, his amendment would further our efforts to move past this chapter in U.S. history. We urge the House to adopt the Smith Amendment and put an end to the ongoing harm to the nation’s security that results from the operation of the facility at Guantanamo Bay, Cuba.

This Administration has repeatedly objected to statutory restrictions that impede our ability to responsibly close the detention facility and pursue appropriate options for the detainees remaining there, including by determining when and where to prosecute detainees, based on the facts and circumstances of each case and our national security interests. In hundreds of terrorism-related cases – and as illustrated once again this week – our federal courts have proven themselves to be more than capable of administering justice.

Obama's audacious claim: U.S. is retooling foreign policy from a position of strength

Back in December 2008, in an interview with Time's Richard Stengel, Obama set for himself what struck me as a "modest and ambitious agenda" to make a significant beginning on several long-term challenges.  I posited in early 2012 that he'd done reasonably well by his own yardstick.

In an interview airing on NPR today, Obama set himself an ambitious set of benchmarks in a narrower range: not foreign policy per se, but the legal and ethical framework in which foreign policy -- and military action -- is formed and executed.  Here's the agenda:

On his foreign policy goals before leaving office:
 
"I'm going to keep on pushing because I want to make sure that when I turn the keys over to the next president, that they have the ability, that he or she has the capacity to — to make some decisions with a relatively clean slate.

"Closing Guantanamo is one. Making sure that we have the right legal architecture for how we conduct counterterrorism and that there's greater transparency, as I discussed today, that's another.

The Obama Doctrine: Pushing on a String?

There wasn't much to inspire in Obama's West Point speech. Dan Drezner wished in advance -- fairly, I think -- that Obama would sketch out in some detail for the benefit of allies just how he proposes to use means other than war to enhance collective security -- in the South China Sea, in eastern Europe. He didn't do that  He just touted in rather general terms the sanctions against Iran and Russia as examples of effective collective action.* He also drew a line, with perhaps more specificity than in the past, between vital U.S. interests that would be defended unilaterally if necessary and " issues of global concern do not pose a direct threat to the United States," in which collective action, usually nonmilitary, is the appropriate course. Perhaps I've grown accustomed to that distinction through Obamosmosis -- it did not surprise me.

What did strike me was a few rather caustic notes. The speech was short on rhetorical olive branches. For example:

1. China the aggressor and competitor: 

Russia’s aggression toward former Soviet states unnerves capitals in Europe, while China’s economic rise and military reach worries its neighbors

Regional aggression that goes unchecked – in southern Ukraine, the South China Sea, or anywhere else in the world – will ultimately impact our allies, and could draw in our military.

Twice Obama rhetorically yoked China's aggression with Russia's -- and once, China's economic success with its military muscle-flexing.  No "we do not seek to contain China's rise" reassurances.

Obama on counterterrorism: will "redefines" become "unwinds"?

It is true, as Matt Welch avers, that Obama could amend much of what is wrong with the current U.S. response to terror by executive order, without the help of Congress. Also true, by extension, is that much of what is wrong -- excessive use of targeted killings, failure to release those Guantanamo prisoners cleared for release, disproportionate punishment of leakers -- is his responsibility [Update, 5/25: See Joe Nocera today on Obama's responsibility for the continuing hell of Guantanamo].  Also, that while yesterday Obama articulated important intentions -- paring back and ultimately repealing AUMF, closing Guantanamo, finding a way out of the indefinite detention trap -- he was lighter on announced action -- though paring back the drone campaign and transferring it to the military (which he didn't mention, but has signaled clearly through other channels) is certainly significant, as is getting the ball rolling with Yemeni detainees.

And yet, we should not under-emphasize the import -- or the courage required -- in redefining the conflict for the American people, taking us back to the future in our response to terrorism, and warning -- as pointedly as Eisenhower did about the military-industrial complex -- about the dangers of perpetual war.  And in this regard, my response to Obama's rhetoric in his speech redefining U.S. response to the terror threat is, once again, almost Pavlovian. He is so analytical, so precise, so nuanced, and so clear in laying out the threats we face, and the need to balance threats to security and freedom, that I can't help but feel renewed faith in his judgment, and to suspect, with one caveat I'll get to later, that he's balanced his responsibility for U.S. security and for the preservation of our civil liberties and standing in the world reasonably well -- constrained by our divided government, the hysterical existing terms of our national security discourse, an intellectually corrupt opposition, and the institutional machinery of the Pentagon and the security state .

Note the blend of analysis, classification and narrative below, the refusal of triumphalism, the parsing of threats -- Pre-, post- and post-post 9/11; regional vs. U.S.-aimed, terror generally vs. jihad, overseas vs. homegrown:

Jack Goldsmith's disillusionment

John Podesta, Bill Clinton's former chief of staff, has an op-ed calling on Obama to release the legal memos setting forth the administration's rationale and guidelines for targeted killings. Good for him. As he notes, he has standing to weigh the competing imperatives of national security and public disclosure -- and with respect to the administration's legal deliberations, he comes down firmly on the side of disclosure.

I am more interested, though,  in the thinking of someone with even more standing to address the legal issues arising from the administration's covert operations: Jack Goldsmith, the short-term head of George W. Bush's Office of Legal Counsel who countermanded the insane torture memos that authorized the Bush administration's torture regime.  There's a link to a Feb. 5 Goldsmith op-ed at the bottom of Podesta's. Goldsmith's latest tells a sad story of disillusionment when compared with Goldsmith's 2009 writings.

Goldsmith takes a step back to consider not just the need for disclosure regarding the drone memos but the need to develop a new legal framework for "secret warfare":

Cheney's still spinning..

No wonder Dick Cheney considers Rush Limbaugh a friend. Cheney twists political reality as relentlessly as he once twisted intelligence, relentlessly as Limbaugh.  If he gets a new heart, he should get his own show. 

Via Slate, here's his latest spin on Obama's counterterror policy, from an interview to be aired tomorrow on NBC:

He obviously has been through the fires of becoming President and having to make decisions and live with the consequences. And it's different than being a candidate. When he was candidate he was all for closing Gitmo. He was very critical of what we'd done on the counterterrorism area to protect America from further attack and so forth.

I think he's learned that he's not going to be able to close Guantanamo. That it's-- if you didn't have it you'd have to create one like that. You've got to have some place to put terrorists who are combatants who are bound and determined to try to kill Americans.

I think he's-- in terms of a lot of the terrorism policies-- the early talk, for example, about prosecuting people in the CIA who've been carrying out our policies-- all of that's fallen by the wayside. I think he's learned that what we did was far more appropriate than he ever gave us credit for while he was a candidate. So I think he's learned from experience. And part of that experience was the Democrats having a terrible showing last election.

And here he is on counterterrorism and drones:

As I say, I think he's found it necessary to be more sympathetic to the kinds of things we did. They've gotten active, for example, with the drone program, using Predator and the Reaper to launch strikes against identified terrorist targets in the various places in the world.

Okay, one point at a time:

Smoke and mirrors on Guantanamo recidivism

Remember all those fevered claims that 20% of the men released from Guantanamo had "returned to the battlefield"?  Today, Marc Ambinder's report on politically motivated Republican attempts to keep prisoners in Guantanamo contains this tidbit:

The letter doesn't refer to what the intelligence community has concluded about recidivism, but a senior U.S. official tells me that the Defense Intelligence Agency has concluded that just 11 of the entire class of 525 former detainees have returned to the battlefield in some capacity and are still at large.

That contradicts Ambinder's own fairly recent report on the same subject -- unless some 80% of alleged recidivists (discounting 'suspected' ones) have been recaptured or killed:

The recidivism rate of the 558 official Guantanamo detainees is hotly debated. The Defense Intelligence Agency confirms that about 10 percent returned to battle or terrorism; an additional 11.2 percent of the released detainees are suspected of having done so.

A small fraction of the number, however, remains at large -- so most of those confirmed to have returned to terrorism have been recpatured, [sic] are imprisoned, or have been killed.

Mark and Joshua Denbeaux et al, attorneys to Guantanamo detainees,  have demonstrated in exhaustive detail that Dept. of Defense estimates of Guantanamo recidivism are vague, undocumented,  mutually contradictory  -- in short, completely unreliable. Which is not to say that the figure floated by Ambinder's latest anonymous source has any particular claim to credibility.

Michael Mukasey's bait-and-switch: 'al Qaeda 7' for Yoo and Bybee

Turning to the op-ed page of the WSJ on Wednesday -- always a dangerous enterprise if you support the rule of law  -- I noted with satisfaction an op-ed by former attorney general Michael Mukasey titled, "Why You Shouldn't Judge a Lawyer by His Clients." It appeared that Mukasey was joining other Bush Administration attorneys and principled conservatives in denouncing the vicious smears of Liz Cheney against Justice Department lawyers and other attorneys who have defended Guantanamo detainees or otherwise worked to uphold the rule of law in the treatment of detainees.

While Mukasey's piece does defend those who defend "clients that were or became unpopular," the piece is a bait-and-switch, built on a false and dangerous equivalence that is sure to become a Republican talking point.  After noting perfunctorily that Bernie Madoff's lawyer was reviled, Mukasey turns to his true passion:

More recently, we've witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture.

After then noting the denunciation of Justice Department attorneys who in private practice represented terrorist suspects or upheld their rights, Mukasey makes his move:

A really naive anti-terror idea

As a kid, I was a serial rereader of a children's version of the Odyssey. I seem to remember feeling some anxiety about Odysseus' method of converting the sorceress Circe, who had turned all his men into swine, into an enduring ally. The God Hermes accosts Odysseus en route to Circe's house and gives him this plan of action:

Here, take this potent herb, and go to the house of Circe, and it shall ward off from thy head the evil day. And I will tell thee all the baneful wiles of Circe. She will mix thee a potion, and cast drugs into the food; but even so she shall not be able to bewitch thee, for the potent herb that I shall give thee will not suffer it. And I will tell thee all. When Circe shall smite thee with her long wand, then do thou draw thy sharp sword from beside thy thigh, and rush upon Circe, as though thou wouldst slay her. And she will be seized with fear, and will bid thee lie with her. Then do not thou thereafter refuse the couch of the goddess, that she may set free thy comrades, and give entertainment to thee. But bid her swear a great oath by the blessed gods, that she will not plot against thee any fresh mischief to thy hurt, lest when she has thee stripped she may render thee a weakling and unmanned.’

It was hard for a 20th century eight year-old to grasp how an oath could be a reliable defense against rooted malice. I seem to remember telling myself that extracting an oath would work best on an immortal -- you can't doubt the enforcement power of the gods if you are one. But in Homer, humans also enjoin other humans to swear similar oaths that they will do no harm - for example, the slave Eumaeus recounts how in his childhood his nurse, plotting with a Phoenician merchant to sell him into slavery, made the merchant swear an oath not to harm her before accepting an offer to travel with him to see the house of her parents (from which she had herself been sold into slavery). Plainly, she felt that an oath would have force even from a person with whom she was plotting treachery.

Oaths are in fact perhaps the oldest human enforcement mechanism. One that just broke into the news is a voluntary ethics oath developed this spring by an Harvard MBA student and signed by over 400 Harvard Business School grads this year.

More than once, while reading about the difficulties and dangers of determining which Guantanamo detainees should be freed, and the Pentagon's highly disputed claims that some 14% of freed detainees have "rejoined the fight," it's occured to me that this is a population that might be particularly disposed to take an oath seriously.

Suppose those detainees against whom there is no compelling evidence of terrorist activity or membership in terrorist groups were induced to swear in the name of Allah to a Muslim cleric whose authority they were bound to respect that they would renounce violence and do no harm to any person on the basis of nationality, creed or any other group identity? Such an oath would not be a stand-alone defense, but rather a kind of insurance policy taken out on those slated to be freed, as two thirds of Guantanamo detainees already have been.

Under criminal law, where a suspect is presumed innocent until proven guilty, oaths would have no place. Sworn voluntarily, however, as an inducement to countries that are considering providing asylum for detainees, oaths might have a place. Prisoners of war, too, have sometimes been required to take oaths as a condition of release - for example, in the U.S. Civil War. Guantanamo detainees' status is ambiguous; whether they should be treated as criminal suspects or prisoners of war, or accorded some variant of the in-between status of created by the Bush Administration under the 'enemy combatant' rubric remains a contested issue.

It may be that militant Islamists have some doctrine releasing them from obligation to oaths coerced by infidels and administered by anyone serving them--particularly in light of the various insults to Islam that were part of "enhanced interrogation" techniques. Still, if clerics with the right credentials could be recruited to administer such oaths, might they have some effect with at least some detainees?

Training in torture

Atul Gawande's long look at solitary confinement in U.S. prisons, Hellhole, asks, "is solitary confinement torture?" and provides overwhelming empirical evidence that the answer is yes. Solitary confinement brings on psychosis and hallucination; it makes the mind effectively disintegrate; it causes lasting psychological damage.

In addition to documenting this torture's effects, Gawande also chronicles its explosion in the U.S. prison system since the early eighties, the same period in which the prison population as a whole has exploded:

The number of prisoners in these facilities has since risen to extraordinary levels. America now holds at least twenty-five thousand inmates in isolation in supermax prisons. An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures. By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well. Mississippi alone held eighteen hundred prisoners in supermax—twelve per cent of its prisoners over all.

Reading this made me think that like most disasters, the Bush Administration's embrace of more physically abusive forms of torture in its treatment of hundreds if not thousands of detainees from Bagram to Guantanamo to Abu Ghraib had no single simple cause -- say, a rogue Vice President and Secretary of State -- but came at the end of a chain of systemic failures. In some sense that needs to be explored further, we have trained ourselves to accept brutal treatment of those we deem to have forfeited their rights. A politics and society that embraces ever more punitive measures against prisoners and illegal immigrants is part and parcel with one that removes regulatory restraint from elites, from Wall Street to the executive branch, that gleefuly redistributes wealth upwards, and that plots to privatize and eviscerate our common measures for sharing risk.

We have changed course. How successful, lasting and thoroughgoing will Obama's counterrevolution be? For better and worse, we're living in interesting times..

Where do you see yourself in two years?

update 4/29/09: Nudging towards Bethlehem

Barack Obama has a little to do list for the next two years (courtesy of Time):

When voters look at your Administration two years from now, in the off-year election, how will they know whether you're succeeding?

I think there are a couple of benchmarks we've set for ourselves during the course of this campaign. On [domestic] policy, have we helped this economy recover from what is the worst financial crisis since the Great Depression? Have we instituted financial regulations and rules of the road that assure this kind of crisis doesn't occur again? Have we created jobs that pay well and allow families to support themselves? Have we made significant progress on reducing the cost of health care and expanding coverage? Have we begun what will probably be a decade-long project to shift America to a new energy economy? Have we begun what may be an even longer project of revitalizing our public-school systems so we can compete in the 21st century? That's on the domestic front.

On foreign policy, have we closed down Guantánamo in a responsible way, put a clear end to torture and restored a balance between the demands of our security and our Constitution? Have we rebuilt alliances around the world effectively? Have I drawn down U.S. troops out of Iraq, and have we strengthened our approach in Afghanistan — not just militarily but also diplomatically and in terms of development? And have we been able to reinvigorate international institutions to deal with transnational threats, like climate change, that we can't solve on our own?

And outside of specific policy measures, two years from now, I want the American people to be able to say, "Government's not perfect; there are some things Obama does that get on my nerves. But you know what? I feel like the government's working for me. I feel like it's accountable. I feel like it's transparent. I feel that I am well informed about what government actions are being taken. I feel that this is a President and an Administration that admits when it makes mistakes and adapts itself to new information, that believes in making decisions based on facts and on science as opposed to what is politically expedient." Those are some of the intangibles that I hope people two years from now can claim.

I find this agenda both staggeringly ambitious and refreshingly modest. Modest, because many of the benchmarks bespeak new beginnings, tangible and positive changes of approach, rather than completely transformed institutions. "Have we made significant progress....Have we begun a decade-long project...have we begun an even longer project...have we strengthened our approach?" The broad goal, too, is in this vein: "I want the American people to be able to say...I feel like government's working for me." That's, again, both modest and transformative. It puts the country on the path to solve problems that (as Obama's been pointing out for two years) we've failed to deal with for decades -- healthcare, climate change, growing income inequality.It's a bid to roll back "government is not the solution, government is the problem," the battle-cry of The Great Risk Shift. The goals are huge, but the approach is incremental.
UPDATE, Feb. 16: Obama once again emphasizes making a beginning on a broad front of interlocking issues.

Promises to keep: The ACLU puts the heat on Obama

Kudos to the ACLU for working from Day 1 to hold Obama to his always rather briefly expressed promises to end torture, close Guantanamo, and revisit FISA. Since November 5, when they took out full-page ads quoting those promises (the first two, anyway), they've been in congratulations-we're-waiting-for-action mode. Yesterday they sent an email to supporters linking to a segment of Obama's recent 60 Minutes interview in which he reiterates those promises (again, without elaboration), again filling the details void in their own terms:

During a 60 Minutes interview last week, President-elect Obama affirmed his intentions to reject torture and close the Guantánamo prison camp and the military commission system.

"It is incredibly gratifying that President-elect Obama plans to put an end to the Guantánamo prison camp and its sham military commission system which have been a stain on America's name at home and abroad,” said Anthony D. Romero, Executive Director of the ACLU. “We strongly urge him to take such action on Day One with the stroke of a pen, by executive order. The Bush military commissions that violate core constitutional principles and rely on hearsay, secret evidence and evidence obtained through torture have no place in our democracy. Federal civilian or military courts are perfectly capable of handling terrorism prosecutions and accommodating sensitive national security concerns, as has been demonstrated time and time again."

Needless to say, Obama did not say that he would close Guantanamo on Day 1 or that he would "end" the "military commission system." But this is the kind of "lobbying" that strengthens democracy. Obama has a large constituency that will "put their hands to the arc of history and bend" him to do more, sooner, to roll back the Bush assault on civil liberties than he might otherwise be inclined to do.

As a card carrying member, I feel an enormous debt of gratitude to the ACLU. Against the Bush Administration's "unitary executive" virus of absolute executive power, the group has proved one of this country's strongest antibodies, successfully challenging the whole extralegal military commissions apparatus in court, mobilizing members to pressure Democrats to resist the Military Commissions Act and the 2008 FISA bill, documenting and publicizing abuses in the secret prison system. Thanks largely to their efforts, the Supreme Court repudiated the Administration's worst excesses, preserving core principles of habeas and rules of evidence. (They did so mainly by bare 5-4 margins -- and now we've been spared the specter of a Court tipped with one or more new appointees inclined to grant the President any right of action he claims.)

The ACLU is primed to keep up a necessary pressure on Obama, fully aware that no president will be eager either to yield up powers claimed and exercised by his predecessor or to prohibit actions --i.e., forms of torture -- that powerful forces within the country's security apparatus will claim are essential to security.